Editor's notes.

- In light of the substantial similarity of the provisions, decisions under former Code 1933, §§ 18-607 and 68-710, are included in the annotations for this section.

Constitutionality.

- For constitutionality of former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292), see Georgia S. & F. Ry. v. Wilson, 93 Ga. App. 94, 91 S.E.2d 71 (1955); Seaboard Coast Line R.R. v. Wroblewski, 138 Ga. App. 793, 227 S.E.2d 438 (1976).

Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) did not raise unconstitutional presumption of negligence. Darlington Corp. v. Finch, 113 Ga. App. 825, 149 S.E.2d 861 (1966).

Origin of Code section.

- Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) was taken from the statute of Mississippi upon this subject. Macon, D. & S.R.R. v. Stephens, 66 Ga. App. 636, 19 S.E.2d 32 (1942).

Cases before 1929 of no benefit.

- Cases decided before 1929 are of no benefit in determining where the burden of proof rests after the plaintiff has made out a prima facie case. Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951).

Construction with former Code 1933, §§ 18-607 and 68-710. - Former Code 1933, §§ 18-607, 68-710 and 94-1108 were construed alike since they contained almost the exact same language and they were intended to operate only when the facts in a case were not or could not be produced, in which event the burden was upon the railroad or bus company to produce the facts which were, as a general rule, peculiarly within its knowledge. An instruction upon the principle embraced in these sections ought not to be given where the testimony in the case sufficiently explained every material fact connected with the infliction of the injury; and these sections have served their purpose when they compel the railroad or bus company to explain how the injury occurred; and that the question of negligence or no negligence was to be decided from the facts in the case. Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120 (1943).

Presumption of negligence repealed.

- The legal presumption of negligence against a carrier was codified, found unconstitutional, recodified as a burden-shifting standard and, as to buses for hire, subsequently repealed by Ga. L. 1992, p. 1179, § 1; therefore, the presumption is no longer valid. Adams v. MARTA, 246 Ga. App. 698, 542 S.E.2d 130 (2000).

Applicability of section to actions in justice of the peace courts.

- Although the strictness of pleading necessary in action in the superior and city courts is not required in justice of the peace courts, nevertheless, where an action is brought in a justice of the peace court against a railroad company for the killing of livestock, it is essential that the plaintiff should, at least in general terms, allege that the killing was the result of the negligence of the defendant company, the presumption of negligence which the law raises against a railroad company being a rule of evidence, and not of pleading, applicable as such to all actions brought against railroad companies for damage sustained by the running of their engines, cars, or other machinery. Powell v. Anderson, 56 Ga. App. 592, 193 S.E. 450 (1937).

Airport "people mover" not railroad.

- "People mover" at Hartsfield International Airport is not a railroad, and the prima-facie evidence provisions of O.C.G.A. § 46-8-292 are not applicable thereto. Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118, 325 S.E.2d 460 (1984), aff'd, 183 Ga. App. 845, 360 S.E.2d 411 (1987).

Cited in Foster v. Southern Ry., 42 Ga. App. 830, 157 S.E. 371 (1931); Western & A.R.R. v. Gray, 172 Ga. 286, 157 S.E. 482 (1931); Southern Ry. v. Bartlett, 44 Ga. App. 710, 162 S.E. 831 (1932); Slaton v. Southern Ry., 45 Ga. App. 781, 165 S.E. 883 (1932); Southern Ry. v. Slaton, 178 Ga. 314, 173 S.E. 161 (1934); Southern Ry. v. Slaton, 50 Ga. App. 570, 178 S.E. 392 (1934); Pidcock v. Stripling, 66 Ga. App. 692, 19 S.E.2d 178 (1942); Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120 (1943); Southern Ry. v. Taylor, 76 Ga. App. 711, 47 S.E.2d 77 (1948); Sherill v. Callaway, 82 Ga. App. 499, 61 S.E.2d 548 (1950); Sylvania C. Ry. v. Gay, 82 Ga. App. 486, 61 S.E.2d 587 (1950); Atlantic Coast Line R.R. v. Hodges, 90 Ga. App. 870, 84 S.E.2d 711 (1954); Atlantic Coast Line R.R. v. Bennefield, 91 Ga. App. 835, 87 S.E.2d 219 (1955); Atlantic Coast Line R.R. v. Sapp, 248 F.2d 889 (5th Cir. 1957); Brown v. Kirkland, 108 Ga. App. 651, 134 S.E.2d 472 (1963); Tennessee, A. & Ga. Ry. v. Andrews, 117 Ga. App. 164, 159 S.E.2d 460 (1968); Turner v. Southern Ry., 46 F.R.D. 71 (N.D. Ga. 1968); Nelson v. Seaboard Coast Line R.R., 125 Ga. App. 764, 188 S.E.2d 887 (1972); Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973); Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 323 S.E.2d 849 (1984); Wall v. Southern Ry., 196 Ga. App. 483, 396 S.E.2d 266 (1990).

Code section operates only when facts are not or cannot be produced.

- Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) was intended to operate only when facts were not or cannot be produced, in which event the burden was upon the company to explain how the injury occurred by producing facts which were, as a general rule, peculiarly within its knowledge. Seaboard Coast Line R.R. v. Wroblewski, 138 Ga. App. 793, 227 S.E.2d 438 (1976).

Rule of evidence under this section exists in favor of plaintiff.

- In an action against a railroad for damages because of injury sustained by the running of its train there existed a rule of evidence in favor of the plaintiff in the beginning of plaintiff's case which did not apply against defendants in general; this provision was found in former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292). Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951).

Presumption of liability of railroad arises where injury caused by operation of trains.

- When it is proved that the damage was occasioned because of the operation of trains, the presumption arises that the railroad company is liable, but the railroad company may rebut this presumption by introducing evidence to show that it was not liable; the burden of procedure is shifted from the plaintiff to the railroad company. Central of Ga. Ry. v. Hester, 94 Ga. App. 226, 94 S.E.2d 124 (1956).

Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) was only a rule of evidence, but by its very terms the proof of injury made a prima facie case for the plaintiff, and the burden was then shifted to the defendant to go forward with evidence rebutting such presumption. Until the defendant puts in some evidence, the presumption continued in force and was a positive aid to the plaintiff's case. Ellis v. Southern Ry., 89 Ga. App. 407, 79 S.E.2d 541 (1953), later appeal, 99 Ga. App. 687, 101 S.E.2d 230 (1957).

Presumption of railroad's liability is rebuttable.

- Presumption of liability of railroad arising where injury is caused by operation of trains is rebuttable. Powell v. Rogers, 75 Ga. App. 165, 42 S.E.2d 573 (1947).

Inference terminated where negligence a jury question.

- Where under the evidence the question of the defendant's negligence is for the jury, the inference of liability is terminated. McVeigh v. Harrison, 68 Ga. App. 316, 22 S.E.2d 752 (1942) (decided under former Code 1933, § 68-710).

Initial burden placed on railroad.

- O.C.G.A. § 46-8-292 places the initial burden of production on the railroad to prove all facts that are peculiarly within the railroad's knowledge. Easterwood v. CSX Transp., Inc., 933 F.2d 1548 (11th Cir. 1991), aff'd, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993).

Proof of injury alone sufficient to carry case to jury.

- If the plaintiff introduces no evidence tending to support the allegations of negligence contained in the petition, the proof of injury from the operation of the train would be sufficient to carry the case to the jury unless the plaintiff's evidence showed nonliability on the part of the defendant as a matter of law. Fowler v. Western & Atl. R.R., 75 Ga. App. 156, 42 S.E.2d 499 (1947).

No prima facie case where no proof that injury caused by running of train.

- Under Ga. L. 1929, p. 315, § 1 (see O.C.G.A. § 46-8-292) proof of an injury is prima facie evidence of the want of reasonable skill and care on the part of the servants of the railroad company only in a case where such injury is inflicted by the running of a locomotive or cars of such company. If the proof does not disclose that the injury was inflicted by the running of a locomotive or cars of the company, then there is no prima facie evidence of want of reasonable skill and care on the part of the servants of the company. Seaboard A.L. Ry. v. Fountain, 173 Ga. 593, 160 S.E. 789 (1931).

Defendant may prove negligence by showing plaintiff's lack of ordinary care.

- If the plaintiff sets up in the petition other allegations of negligence than the mere fact that the damage was occasioned by other acts of negligence than the operation of its trains, the defendant must in some way put up evidence in its behalf to show that the defendant is not liable for any reason which it may show; among those reasons is that even though the defendant was negligent in some manner or other of the acts of negligence alleged by the plaintiff, nevertheless the plaintiff would not be entitled to recover, because by the exercise of ordinary care plaintiff could have avoided the negligence of the defendant. Central of Ga. Ry. v. Hester, 94 Ga. App. 226, 94 S.E.2d 124 (1956).

Other acts of negligence of defendant may be proved as part of res gestae.

- Negligent conduct of the defendant, if a part of the res gestae of the transaction in which the plaintiff is injured, though not the proximate cause thereof, may be alleged and proved in connection with the negligent acts of the defendant through which the injury did directly occur. Alabama G.S.R.R. v. McBryar, 65 Ga. App. 153, 15 S.E.2d 563 (1941) (decided under former Code 1933, § 18-607).

Burden on railroad to produce evidence countering prima facie case.

- Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) casts upon railway company burden of producing some evidence contrary to prima facie case; and when that was done the inference was at an end. Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 176 S.E.2d 111 (1970).

Code section is rule of evidence.

- Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) was rule of evidence only and when it was relied upon by the plaintiff in showing that the stock was killed by the operation of the defendant's train and the railroad company introduced some evidence of the exercise of reasonable care and skill, then the prima facie rule vanished and the burden was on the plaintiff to prove by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injury. Atlantic Coast Line R.R. v. Rowe, 83 Ga. App. 540, 64 S.E.2d 216 (1951).

Code section replaces proof of negligence alleged.

- Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) simply took the place of proof of negligence alleged, and where the defendant introduced evidence disproving the negligence alleged the presumption vanished, and it then became incumbent on the plaintiff to introduce other evidence of negligence. Georgia Power Co. v. Watts, 56 Ga. App. 322, 192 S.E. 493 (1937); McVeigh v. Harrison, 68 Ga. App. 316, 22 S.E.2d 752 (1942).

Section's purpose served when railroad has explained cause of injury.

- The inference created by a prima facie proof of injury by the running of railroad cars is at an end and vanishes when the railroad company produces some evidence to the contrary. In such a situation former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) had served its purpose when the railroad was compelled to explain how the injury occurred and the question of negligence or nonnegligence was to be decided by the entire facts of the case. Then the plaintiff must prove by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the alleged injury. Atlantic Coast Line R.R. v. Rowe, 83 Ga. App. 540, 64 S.E.2d 216 (1951).

Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) served its purpose when it compelled the railroad to explain how the injury occurred, and the question of negligence or no negligence was to be decided by the facts of the case. Parrish v. Southwestern R.R., 57 Ga. App. 847, 197 S.E. 66 (1938); McVeigh v. Harrison, 68 Ga. App. 316, 22 S.E.2d 752 (1942).

Former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) served its purpose when it compelled common carrier to explain how injury occurred, and the question of negligence was then to be decided by the facts of the case. Knight v. Atlanta Transit Sys., 137 Ga. App. 667, 224 S.E.2d 790 (1976) (decided under former Code 1933, § 68-710).

Prima facie presumption rebutted with positive evidence to the contrary.

- Where as a result of proved facts, only a prima facie presumption arises that certain additional facts exist in favor of one party, and positive, unequivocal, and uncontradicted testimony is introduced in behalf of the other party, emphatically denying the facts thus presumed, such presumption is legally rebutted and cannot prevail against such testimony. Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 176 S.E.2d 111 (1970).

By showing that plaintiff's mule was killed by the operation of train, plaintiff successfully invoked the prima facie presumption of want of reasonable skill and care afforded by former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292); but the inference created by proof of injury by the running of the defendants' train came to an end when defendants produced evidence to the contrary, and the burden then fell on the plaintiff to make out a case without any aid from that section. Jones v. Powell, 71 Ga. App. 202, 30 S.E.2d 446 (1944).

Where testimony purported to explain all of the material facts connected with the injury and to rebut the allegations of negligence, the presumption of liability on the part of the railroad was not applicable, and the case should have been submitted to the jury without reference to that presumption. Southern Ry. v. James, 170 Ga. App. 73, 316 S.E.2d 159 (1984).

Prima facie presumption disappears after rebuttal.

- When the presumption created by former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) was rebutted by evidence, it disappeared from the case and the burden was on plaintiff to prove negligence as alleged by a clear preponderance of the evidence. Brooks v. Southern Ry., 86 F.2d 920 (5th Cir.), cert. denied, 300 U.S. 674, 57 S. Ct. 613, 81 L. Ed. 880 (1937).

The inference created by proof of injury by the running of the defendant's cars is at an end when the defendant has produced some evidence to the contrary. Parrish v. Southwestern R.R., 57 Ga. App. 847, 197 S.E. 66 (1938); Dodd v. Callaway, 76 Ga. App. 629, 46 S.E.2d 740 (1948).

The inference of fault of a railroad company in an action for injuries inflicted by the running of railroad cars, disappears with the first evidentiary rebuttal by defendant of alleged negligence. Bennett v. Seaboard Coast Line R.R., 302 F. Supp. 271 (S.D. Ga. 1969).

Inference terminated where defendant carrier has produced contrary evidence.

- The purpose of former Code 1933, § 68-710 (see O.C.G.A. § 46-8-292) was to create an inference and cast upon the defendant carrier the duty of producing some evidence to the contrary, and when that was done the inference was at an end and the question of negligence became one for the jury upon all the evidence. Knight v. Atlanta Transit Sys., 137 Ga. App. 667, 224 S.E.2d 790 (1976) (decided under former Code 1933, § 68-710).

The presumptions of negligence against a carrier towards a passenger who is injured by a carrier in the running of its train vanishes upon the introduction by the defendant of testimony in rebuttal of such presumption, and the question of negligence is then for the jury. The burden then rests upon the plaintiff to establish the alleged negligence by a preponderance of the evidence. Alabama G.S.R.R. v. McBryar, 65 Ga. App. 153, 15 S.E.2d 563 (1941) (decided under former Code 1933, § 18-607).

Rule is applicable only where defendant rebuts each act of negligence alleged.

- The rule that when the railroad company introduced evidence that its employees were not negligent in the operation of the train the presumption under former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) disappeared was only applicable when the defendant's testimony showed that the trainmen were not guilty of any of the acts of negligence alleged in the petition and relied on by the plaintiff as the basis of recovery. Ellis v. Southern Ry., 96 Ga. App. 687, 101 S.E.2d 230 (1957).

Contrary evidence may show exercise of reasonable skill and care by railroad.

- The presumption afforded by O.C.G.A. § 46-8-292 is a rebuttable presumption and disappears when the railroad company introduces evidence showing the exercise of reasonable care and skill, that is, ordinary care, by its employees in the operation of the train at the time and place in question. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362, 53 S.E.2d 713 (1949); Houston v. Georgia N.E.R.R., 193 Ga. App. 687, 388 S.E.2d 762 (1989).

This is a rule of evidence, and the presumption thus created is overcome by the introduction of evidence of the exercise of reasonable care and skill on the part of the servants of the railroad at the time and place in question, and such evidence is controlling, if not discredited or contradicted, in the absence of any evidence of negligence on the part of such servants at the time and place in question. Atlantic Coast Line R.R. v. Mercer, 82 Ga. App. 312, 60 S.E.2d 649 (1950).

Contrary evidence may explain cause of injury.

- Defendant railroad, to overcome the presumption under former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292), does not have to introduce evidence showing that its servants were in the exercise of reasonable skill and care, but only has the burden of explaining how the injury occurred and producing some evidence to the contrary of the plaintiff's charges of negligence. Macon, D. & S.R.R. v. Stephens, 66 Ga. App. 636, 19 S.E.2d 32 (1942).

Burden of evidence shifting back to plaintiff.

- When the railroad offers opposing evidence as to each act of alleged negligence the statutory presumption immediately vanishes, and the plaintiff must go forward with the evidence if any more is needed to establish a preponderance of the evidence. Plaintiff does this, not because the burden of proof has been shifted to plaintiff, since such a burden never left plaintiff from the beginning of the case, but because the burden of evidence was shifted back to plaintiff. Atlantic Coast Line R.R. v. Thomas, 83 Ga. App. 477, 64 S.E.2d 301 (1951).

The prima facie presumption of want of reasonable skill and care on the part of the servants of railroad companies which arises upon proof of injury inflicted by the running of their locomotives or cars disappears upon the introduction of some evidence showing absence of such negligence. The burden of proof then shifts to the plaintiff to show such negligence as will authorize recovery. Atlantic Coast Line R.R. v. Carver, 81 Ga. App. 26, 57 S.E.2d 692 (1950).

Presumption vanishes where claimant particularizes various acts of negligence.

- When any evidence is produced showing that the railroad company was not negligent, the presumption vanishes, or when a claimant particularizes various acts of negligence, such as the defective crossing, the presumption vanishes. Brown v. Seaboard Coast Line R.R., 405 F.2d 601 (5th Cir. 1968).

Evidence introduced by railroad cannot be arbitrarily disregarded.

- This rule is merely a rule of evidence, so that the presumption thus created is overcome by the introduction by the railroad company of evidence of the exercise by it or its servants operating the train of reasonable skill and care in the performance of their duties at the particular time and place in question. Such evidence on behalf of the railroad cannot arbitrarily be disregarded in the absence of any evidence to discredit or contradict it. Atlantic Coast Line R.R. v. Hodges, 79 Ga. App. 563, 54 S.E.2d 500 (1949); Wright v. Central of Ga. Ry., 85 Ga. App. 654, 69 S.E.2d 902 (1952).

Evidence introduced by railroad is controlling if not contradicted.

- Where it is shown that injury was inflicted by the running of a railroad train, a presumption of negligence arises against the railroad, but the presumption is overcome by evidence on behalf of the railroad showing the exercise of ordinary and reasonable care and skill, and, in the absence of any evidence to discredit or contradict this evidence, or showing negligence on the part of servants of the railroad, it is controlling, and a verdict for the plaintiff is unauthorized. Atlantic Coast Line R.R. v. Martin, 79 Ga. App. 194, 53 S.E.2d 176 (1949); Atlantic Coast Line R.R. v. Clemmons, 87 Ga. App. 177, 73 S.E.2d 210 (1952).

Case to be decided on facts alone after presumption rebutted.

- Where testimony is introduced tending to explain every material fact connected with the infliction of the injury, and to rebut every allegation of negligence, the presumption is dead, and the case is to be decided upon its facts alone. Louisville & N.R.R. v. Bennett, 89 Ga. App. 534, 80 S.E.2d 195 (1954).

Question of negligence is for jury from all evidence.

- Proof of injury inflicted by the running of a locomotive or cars of a railroad company is prima facie evidence of the want of reasonable skill and care on the part of the servants of the company, and proof thereof casts upon the railroad company the burden of producing some evidence to the contrary; and when this is done the inference is at an end, and the question of negligence is one for the jury from all the evidence. Georgia Power Co. v. Braswell, 48 Ga. App. 654, 173 S.E. 763 (1934).

Infliction of injury amounts to evidence in certain circumstances.

- Under former Code 1933, § 18-607 (see O.C.G.A. § 46-8-292) infliction of injury amounted to evidence under certain circumstances until rebuttal evidence had been introduced. Seaboard Air Line Ry. v. Benton, 175 Ga. 491, 165 S.E. 593 (1932) (decided under former Code 1933, § 18-607).

Assumption of risk.

- Evidence adduced by the railroad rebutted the presumption of negligence granted by O.C.G.A. § 46-8-292, where decedent's actions in going upon a trestle and relying on a water barrel stand as a place of safety in the event a train passed constituted assumption of the risk and would bar recovery. Munger v. Central R.R. Co., 199 Ga. App. 301, 404 S.E.2d 647 (1991), cert. denied, 199 Ga. App. 906, 404 S.E.2d 647 (1991).

Presumption overcome by testimony of only eyewitnesses.

- Presumption of negligence on the part of the defendant railroad created by proof that the plaintiff's cattle were killed by the running of defendant's train, was entirely overcome and rebutted by the defendant when it introduced the testimony of the engineer and firemen of the train, who were the only eyewitnesses to the killing, and this clearly and sufficiently explained every material fact connected with the killing. Macon, D. & S.R.R. v. Stephens, 66 Ga. App. 636, 19 S.E.2d 32 (1942).

Presumption overcome by testimony that weather too foggy to avoid injury.

- Where relying entirely upon the presumption of negligence against railroad companies the plaintiff shows that one of plaintiff's cows had been killed by the defendant company's train, and the presumption is overcome by the uncontradicted evidence of the engineer that the weather was so foggy that it was impossible for the engineer to have seen the animal in time to avoid killing it, in the absence of anything to discredit or contradict such evidence a verdict was demanded for the railroad company. Atlantic Coast Line R.R. v. Sears, 80 Ga. App. 338, 56 S.E.2d 129 (1949).

Burden of evidence upon railroad in wrongful death action.

- In a parent's action against a railroad for the death of a child, after it was shown that the child was killed by the railroad's engine, the burden of evidence was upon the railroad to disprove its negligence and introduce proof that it was not negligent in the particulars alleged in the complaint. Georgia S. & F. Ry. v. Wilson, 93 Ga. App. 94, 91 S.E.2d 71 (1955).

Under former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292),proof of the fact that deceased was killed by train casts the burden upon the defendant to show the exercise of due care and skill in the operation of the locomotive at the time and place of the homicide. Ellis v. Southern Ry., 89 Ga. App. 407, 79 S.E.2d 541 (1953), later appeal, 99 Ga. App. 687, 101 S.E.2d 230 (1957).

Dog found dead near railroad tracks does not imply dog killed by train.

- Evidence that the plaintiff's dog was found lying dead about ten feet from the defendant's railroad track, that there were no marks or lacerations on the dog, but the slag along said railroad looked as though something had been knocked or dragged over it, was insufficient to authorize the inference that the dog was killed by the operation of one of the defendant's trains. Alabama G.S.R.R. v. Raines, 52 Ga. App. 589, 183 S.E. 926 (1936).

Proof that train did not jerk on prior occasions not relevant in passenger injury.

- In an action for injuries to passenger alighting from train, court did not err in refusing to permit the defendant to show by witness that the witness had habitually ridden to work on the same diesel engine train, and that during all of such times it had never jerked in starting since question was not whether the diesel engine train had jerked on former occasions but on the occasion of the plaintiff's injury. Alabama G.S.R.R. v. McBryar, 65 Ga. App. 153, 15 S.E.2d 563 (1941) (decided under former Code 1933, § 18-607).

Proper instruction where driver confronted with emergency.

- In an action against a carrier for wrongful death of a passenger due to negligent operation of a bus, the judge should instruct the jury that the duty of the driver to exercise extraordinary care continued in all events, whether or not the jury believed that the driver was confronted with a sudden emergency, but that if they should conclude that a sudden emergency did arise, in deciding whether the driver continued to exercise extraordinary care they should take into consideration the fact that when one is confronted with a sudden emergency one is not to be held to the same accuracy of judgment as would be required of the person if one had time for deliberation. Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120 (1943) (decided under former Code 1933, § 68-710).

Location of trees.

- O.C.G.A. § 46-8-292 placed the burden of production upon the railroad to show that trees, which were alleged to have contributed to the dangerous condition of a grade crossing, were not on the railroad's property. Easterwood v. CSX Transp., Inc., 933 F.2d 1548 (11th Cir. 1991), aff'd, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993).

No error in failing to charge section where presumption rebutted.

- It is not error for the court to fail to charge the jury on the provisions of former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) where the defendant railroad company introduced evidence in rebuttal of plaintiff's allegations of negligence, and to charge that the burden of proof rested on the plaintiff to prove the essential allegations of the complaint. Parrish v. Southwestern R.R., 57 Ga. App. 847, 197 S.E. 66 (1938).

Failure to charge section not error where inference rebutted.

- Where there was any evidence tending to rebut the inference raised by the provisions of former Code 1933, § 68-710 (see O.C.G.A. § 46-8-292) failure to charge its provisions was not error. Brown v. Kirkland, 108 Ga. App. 651, 134 S.E.2d 472 (1963) (decided under former Code 1933, § 68-710).

Charge on section not to be given where testimony explains injury.

- An instruction upon the principle embraced in former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) ought not to be given where the testimony in the case sufficiently explained every material fact connected with the infliction of the injury. Seaboard Coast Line R.R. v. Wroblewski, 138 Ga. App. 793, 227 S.E.2d 438 (1976).

Error to charge on presumption of section where presumption rebutted.

- In an action against a railroad company for damages to persons or property resulting from the running of its locomotives or cars, the inference created by proof of injury so inflicted was at an end when the company introduced evidence in rebuttal of the plaintiff's allegations of negligence; and it was then reversible error for the court to charge the provisions of former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292). Macon, D. & S.R.R. v. Stephens, 66 Ga. App. 636, 19 S.E.2d 32 (1942).

When all of the facts touching the injury inflicted were in evidence, both from the testimony of the plaintiff and of the defendant, the court should not give former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) in charge to the jury. Atlantic Coast Line R.R. v. Paulk, 104 Ga. App. 316, 121 S.E.2d 688 (1961).

Where the defendant introduced evidence sufficient to authorize a finding of its exercise of ordinary care under the circumstances and introduced material facts connected with the collision, the principle set out in former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) had no place and court erred in charging thereon. Atlantic Coast Line R.R. v. Parker, 90 Ga. App. 251, 82 S.E.2d 706 (1954).

Where, on the trial of an action against a railroad company for damages because of alleged injuries from the operation of a train, there was evidence in rebuttal of the plaintiff's allegations of negligence, it was error for the court to give former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) in charge. Central of Ga. Ry. v. Cooper, 45 Ga. App. 735, 165 S.E. 858 (1932).

In an action for damages against railway company for the killing of plaintiff's cow by defendant's locomotive, where the defendant introduced testimony as to the manner in which the cow was killed, the presumption of negligence ceased to exist and should not have been given in the charge to the jury. Louisville & N.R.R. v. Bennett, 89 Ga. App. 534, 80 S.E.2d 195 (1954).

Error to charge that burden is on defendant to show no liability.

- Where the plaintiff relies entirely upon the presumption of negligence arising against railroad companies by proof of injury to persons or property by the running of the defendant's trains or cars, and the defendant introduces evidence which the jury would be authorized to find exonerates the defendant, it is error to charge the jury that the burden is upon the defendant to show that the railroad company was not liable, that is, that the servants or employees of the company exercised all due and ordinary care and diligence on their part. Atlantic Coast Line R.R. v. Sears, 80 Ga. App. 338, 56 S.E.2d 130 (1949).

Error to require defendant to show exercise of ordinary care by preponderance of evidence.

- Where the defendant railroad company has produced some evidence contrary to each of the alleged acts of negligence testified to on behalf of the plaintiff, it is reversible error, in the absence of corrective instructions elsewhere in the charge, for the court to charge the jury that when it is shown that livestock is killed by the railroad company that the burden shifts to the defendant railroad company to show by a preponderance of the evidence that it has exercised ordinary care and diligence to prevent the injury and damage. Atlantic Coast Line R.R. v. Rowe, 83 Ga. App. 733, 64 S.E.2d 689 (1951).

How error in charging section may be cured.

- Error committed by court in charging in effect that injury inflicted by locomotive is presumed to have been caused by railroad's negligence, although railroad's evidence destroyed such presumption, may be cured where there is an express withdrawal by the court of that portion of the charge in another part thereof, but it is not cured merely by further explanation to the effect that, when railroad introduces evidence as to its manner of running its locomotives and cars, the question of negligence is then to be decided upon its facts. Louisville & N.R.R. v. Bennett, 89 Ga. App. 534, 80 S.E.2d 195 (1954).

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, §§ 929, 932, 936.

12 Am. Jur. Pleading and Practice Forms, Fires, § 2.

C.J.S.

- 74 C.J.S., Railroads, § 864.

ALR.

- Statute creating presumption of negligence against railroad company as applicable to receiver operating road, 1 A.L.R. 1180.

Applicability of res ipsa loquitur doctrine where person or vehicle is struck by streetcar, 2 A.L.R. 1610.

Liability of street railway company to passenger on account of crowded condition of cars, 5 A.L.R. 1257; 42 A.L.R. 1329.

Liability of carrier for injury to passenger due to obstruction of aisle or platform by property of another passenger, 19 A.L.R. 1372.

Res ipsa loquitur as applicable to injury to passenger in a collision where one of the vehicles is not within carrier's control, 25 A.L.R. 690; 83 A.L.R. 1163; 161 A.L.R. 1113.

Liability of carrier for injury to passenger by car window, 29 A.L.R. 1262; 45 A.L.R. 1541.

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Running past stop signal as wanton or willful misconduct rendering railroad company liable for injury to trespasser, 41 A.L.R. 1354.

Liability for personal injury to passenger in Pullman car, 41 A.L.R. 1397.

Liability of street railway company to passenger struck by vehicle not subject to its control, 44 A.L.R. 162.

Contributory negligence of passenger in standing near door of car, 50 A.L.R. 1365.

Infrequent use of crossing by railroad company as affecting its duty or liability to traveler at crossing, 52 A.L.R. 751.

Duty of driver whose view at railroad crossing is obstructed to leave vehicle in order to get an unobstructed view before crossing, 56 A.L.R. 647; 91 A.L.R. 1055.

Carrier's liability for injury to passenger by heating apparatus, 58 A.L.R. 692.

Duty of railroad to maintain gates, gongs, or other safety devices at crossings, 60 A.L.R. 1096.

Failure of train employee to discover in time to avert accident that object seen on or near track is human being, as negligence, 70 A.L.R. 1116.

Presumption as to due care by person killed at railroad crossing, 84 A.L.R. 1221.

Duty and liability of carrier of passengers for hire by automobile, 96 A.L.R. 727.

Liability of railroad for injury to or death of one other than its employee due to defective condition of car received from another railroad which he was unloading or loading, 126 A.L.R. 1095.

Res ipsa loquitur, or presumption, or inference of negligence on part of carrier where passenger is injured by object coming from outside, through or against, car window, 129 A.L.R. 1340.

Liability for death or injury as result of suction from passing train, 149 A.L.R. 907.

Standing railroad car or streetcar and appliances as attractive nuisance, 152 A.L.R. 1263.

Liability of railway company for personal injury, other than to passenger, caused by defective condition of car delivered to another company, 152 A.L.R. 1313.

What amounts to negligence of gate tender at railroad crossing, 160 A.L.R. 731.

Res ipsa loquitur as applicable to injury to passenger in collision where other vehicle was not within carrier's control, 161 A.L.R. 1113.

Release or contract after injury as affected by provision of Federal Employers' Liability Act invalidating contract, rule, or device to exempt carrier from liability, 166 A.L.R. 648.

Carrier's liability to person in street or highway for purpose of boarding its vehicle, 7 A.L.R.2d 549.

Open door as ground of liability of carrier for injury to passenger falling or alighting from vehicle, 7 A.L.R.2d 1427.

Duty and liability of carrier to intoxicated passenger while en route, 17 A.L.R.2d 1085.

Duty of railroad company to maintain flagman at crossing, 24 A.L.R.2d 1161.

Intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308.

Liability of carrier to passenger for injury due to crowded condition of motorbus, or pushing or crowding of passengers therein, 26 A.L.R.2d 1219.

Error as to instructions on burden of proof under doctrine of res ipsa loquitur as prejudicial, 29 A.L.R.2d 1390.

Railroad's duty to children walking longitudinally along railroad tracks or right of way, 31 A.L.R.2d 789.

Attempt to board moving car or train as contributory negligence or assumption of risk, 31 A.L.R.2d 931.

Liability of motor carrier to passenger for injuries assertedly caused by failure to heat conveyance adequately, 33 A.L.R.2d 1358.

Finding of decedent's body on or near tracks as creating presumption or inference of railroad's negligence, or as affecting burden of proof relating thereto, 40 A.L.R.2d 881.

Applicability of res ipsa loquitur or doctrine of exclusive control to injury or damage caused by fall of object from train, 41 A.L.R.2d 932.

Liability for injury occurring when clothing of one outside motor vehicle is caught as vehicle is put in motion, 43 A.L.R.2d 1282.

Liability of motor carrier for injuries to passengers from accident occasioned by blowout or other failure of tire, 44 A.L.R.2d 835.

Liability of carrier to passenger injured by hurling of object through window by a third person, 46 A.L.R.2d 1098.

Liability for injury or damage from stone or other object on surface of highway thrown by passing vehicle, 56 A.L.R.2d 1392.

Liability of motor carrier for injury or death of passenger inflicted by the vehicle from which he has alighted, 58 A.L.R.2d 932.

Liability of motor carrier for injury or death of passenger who has alighted, caused by conditions at place of alighting, 58 A.L.R.2d 948.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Liability of carrier to passenger injured through fall of baggage or other object from overhead repository, 68 A.L.R.2d 667.

Liability of railroad for injury due to road vehicle running into train or car standing on highway crossing, 84 A.L.R.2d 813.

Railroad's liability to owner or occupant of motor vehicle for accident allegedly resulting from defective condition of road surface at crossing, 91 A.L.R.2d 10.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Liability of owner or operator of motor vehicle or aircraft for injury or death allegedly resulting from failure to furnish or require use of seat belt, 49 A.L.R.3d 295.

Liability for injury to or death of passenger from accident due to physical condition of carrier's employee, 53 A.L.R.3d 669.

Carrier's liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult, 74 A.L.R.3d 1171.

Application of res ipsa loquitur doctrine to accidents incurred by passenger while boarding or alighting from a carrier, 93 A.L.R.3d 776.

Liability of taxicab carrier to passenger injured while alighting from taxi, 98 A.L.R.3d 822.

Liability of common carrier for personal injury or death of passenger occasioned by inhalation of gases or fumes from exhaust, 99 A.L.R.3d 751.

Liability of land carrier to passenger who becomes victim of third party's assault on or about carrier's vehicle or premises, 43 A.L.R.4th 189.